Discovery and Evidence

Discovery is the pre-trial process through which parties exchange information and evidence relevant to the case. It is often the most time-consuming and expensive phase of litigation.

Purpose of Discovery

Discovery serves several important functions:

Prevents trial by surprise — both sides learn what evidence exists

Enables parties to assess the strengths and weaknesses of their case

Facilitates settlement by providing both sides with full information

Preserves testimony that might otherwise be lost

Discovery Tools

Interrogatories — written questions that the other party must answer under oath. Limited to 25 in federal court without court permission.

Requests for production — demands for documents, electronically stored information (ESI), and tangible things relevant to the case.

Requests for admission — requests that the other party admit or deny specific facts, narrowing the issues for trial.

Depositions — oral testimony given under oath and recorded by a court reporter. Attorneys can question any witness, including parties, experts, and third parties. Deposition testimony can be used at trial.

Subpoenas — court orders requiring non-parties to produce documents or appear for testimony.

Scope of Discovery

Discovery is broadly permitted for any matter that is:

Relevant to a party's claim or defense

Proportional to the needs of the case (considering importance, amount in controversy, resources, and burden)

Privileged information is protected from discovery:

Attorney-client privilege — confidential communications between lawyer and client

Work product doctrine — materials prepared in anticipation of litigation

Spousal privilege — in some contexts

Doctor-patient privilege — varies by jurisdiction

E-Discovery

Electronic discovery (e-discovery) involves the exchange of electronically stored information — emails, text messages, databases, social media posts, and metadata. Parties have a duty to preserve potentially relevant electronic evidence once litigation is reasonably anticipated (the litigation hold). Failure to preserve evidence can result in sanctions, including adverse inference instructions.

Discovery Disputes

Common disputes include:

Relevance objections — arguing requested information is not relevant

Privilege claims — asserting that information is protected

Proportionality objections — arguing the burden outweighs the benefit

Motions to compel — asking the court to order a party to comply with discovery requests

Discovery and Evidence